November 22, 2010

The amendment would require Oklahoma courts to "rely on federal and state law when deciding cases" and "forbids courts from considering or using" either international law or Islamic religious law, known as Sharia, which the amendment defined as being based on the Quran and the teachings of the Prophet Mohammed.

In bringing suit, CAIR argued that the amendment violates both the establishment and free-exercise clauses of the First Amendment's guarantee of religious freedom. Awad has said the amendment passed "under a campaign of fearmongering" about Islam.

92 comments:

The big deal is that the Muslim planners are reacting so strongly to a restriction that hampers setting up Muslim Rule in Oklahoma. What do they know that we don't know? Their most current assault by are to sneak Sharia in under a UN treaty that forbids insulting any culture, such as, allah or his prophet. How dare anyone say no to them?

I have no problem with it if it is completely religion neutral. That means that the courts and judges should no be referring to Christianity and the bible when making rulings. If the amendment does not then it should be thrown out as unconstitutional.

The Muslim community may/may not be a threat to Oklahoma, but sharia law certainly is. Are they saying there is no distinction? It would seem to me that the American Muslim community would WANT there to be a distinction.Methinks they protest too much.

That’s foolish, it’s a Judeo-Christian nation…the foundation of our law is Judeo-Christian…you can have NO law divorced from a religion, we are simply saying that you may not use Shari’a Law, UNLESS it’s incorporated by Statute, just like International Law may not be used unless it’s incorporated by statute…..I could agree that a court would be wrong to use Deuteronomy or Canon Law to decide cases, because they are parochial law, not Common or Statutory, though reference COULD be made to them, in a historical sense.

I'm not sure how they can pre-empt Sharia law. The federal arbitration act requires compliance and states cannot opt out. If individuals agree to use sharia law to settle their disputes, no state law can stop it.

And nor should they, by current law.

The only way to stop it would be if an individual can show that they did not agree to submit to sharia law. But currently, as the law is written, if you buy a ski lift ticket and printed on the back of that ticket is an arbitration clause that lists the American Arbitration Association, or even the UnAmerican Sharia Law Arbitration Association as binding arbitrators, and you use that ticket, then you are bound to sharia law regarding that ticket and its use and there is nothing you or state law can do about it.

I'm not saying this is a good thing, in fact I think it's all quite bad whether arbitration is secular or islamic. But that is the law, and no state law can undo it.

Seven, no they can't. The Supreme Court has ruled on this consistently. I took a class on arbitration in law school and the entire class was a running joke. The answer to almost every possible answer you could ask was the same. Once you agree to arbitration in any form whatsoever, you are bound to it and cannot escape it by almost any means.

If your boss sends out an email saying that if you show up to work tomorrow, then that would constitute consent to submit to arbitration in any employment dispute, and you then come to work the next day, you are bound to arbitration.

This amendment just seems poorly though-out and unclear as to what, exactly, it is trying to prevent. Honor killings? Stoning? These things are *already* illegal, and there is no argument that this law applies equally to everybody. On the other hand, if the voters become sufficiently radicalized so as to demand the legislature craft religious exemptions to the criminal laws, that's pretty a violation of the First Amendment.

There is the question of arbitration, I suppose, but if two parties agree to a certain arbitrator and there is no allegation of coercion, I see no particular reason why this would be prevented.

Seven, you can "get it" but you'd still be wrong. The entire purpose of arbitration is so that they need not be certified or regulated by anyone.

Arbitration exists precisely because the courts recognize, or claim to recognize, that some industries or types of activities are too specialized for courts to appreciate the nuances in business practices. At least that was the genesis of arbitration. There is no need to prove specialization in a subject to have arbitration.

In truth, arbitration is favored because the courts are lazy and over worked and they prefer to keep matters out of court. They view arbitration as a way of reducing court work load while allowing businesses to control how they conduct business among themselves. The theory is that costs would be lower for the parties and they would get results that are appropriate for their businesses.

In practice, arbitration has been shunned by many businesses because it tends to be more expensive than courts, and their is very little remedy available if the arbitrator is unfair or in error. Also, the law would tend to atrophy while developments in law would all be occurring in arbitration.

Arbitration is now used against consumers and by large businesses against small businesses. The ski lift ticket buyer must pay for expensive arbitration instead of going to small claims court, for example.

Arbitration, in my opinion, is a mockery of justice, but it is the law. Wishing that states can opt out of the FAA does not change the fact that they can't.

Skyler -- Do you really believe that, say, Charles Manson could be named as an arbitrator and a party to a license such as a ski lift operator's license would be bound to honor arbitration by Charles Manson?

Unconscionability is more challenging to claim in arbitration than in regular courts.

If a ski lift company used Manson as an arbitrator, and you bought that ski lift ticket, then you are bound to Manson's decisions.

Manson can use whatever method he wants to decide the dispute, including reading the entrails of his victims. And you would be bound to that process so long as the result did not violate public policy.

You may not like this, and I certainly don't, but that's the law. The law is an ass.

If you look up the phrase it has origins back about 100 years and was invented to keep the Jews from getting all upset for the Christians leaving them out of things.

It is a term with no meaning and our founding fathers didn't have it in mind.

One thing that always happens when a goofy tries to get cute in a war of words; he/she/it always manages to say something really really stupid, so stupid no one can believe it and then the little contest is over...like it is now.

Let me add this: I'm no expert on arbitration, I've only taken one class in the subject. But the gist of what I learned there is pretty clear. There are fewer exceptions in arbitration law than in most other areas of law, but there are exceptions.

I'm just taking a long break from my military duties while surfing on this thread, I don't have the time to look up all the details. I may have missed something. But the general trend in the law supports what I've written here.

Hey they can add the canon law as dictated by the pope if they want.If that would make AlphaLiberal happy.

But nothing will because he feels that the rights of the adherents of the religion of peace superceeds the laws of the United States. We can never offend them. We need to give them the rope to hang us with.

Other than for accounting matters I specifically do not permit arbitration to be a resolution mechanism in any contract I enter into. If you cannot resolve a problem then litigate it. Out with the arbitration language. First thing.

The amendment would require Oklahoma courts to "rely on federal and state law when deciding cases" and "forbids courts from considering or using" either international law or Islamic religious law, known as Sharia, which the amendment defined as being based on the Quran and the teachings of the Prophet Mohammed.

This amendment would be unconstitutioal six ways from Sunday:

1. "International law" is vague. Do they mean the law between nations or do they mean the law of other nations?

2. If they mean the law between nations, the part banning consideration of international law conflicts with the part mandating reliance on federal law, because the Supreme Court has ruled that "International law is part of our law." Paquete Habana.

3. If they mean the law of other nations, the part banning consideration of international law violates the constitutional provision barring state impairment of contracts, if the contract contains a choice of law provision specifying a foreign country's law.

5. By specifying that Sharia law is based on the Quran and the teachings of Mohammed, the amendment requires an excessive entanglement with religion, because courts would have to determine if particular rules can be traced to the documents of the Muslim religion, a task for which they are poorly equipped. Would courts have to hire Muslim theologians to help determine this?

5a. There is considerable overlap among the rules of all three Abrahamic religions -- could finding parallel authority in Judaism or Christianity save a Sharia rule?

6. Barring consideration of Sharia law without also barring canon law or Torah (see www.betdin.org) promotes other religions at the expense of Islam.

it expressly forbids Muslim law or anything therefore coming out of what I'd loosely describe as a Muslim "code". It doesn't say a word about Christian "law" of which there isn't anything but a lot of folks take the 12 commandments as "law" and the bible prescribes punishments for breaking certain rules...

The OK law fails on many, many grounds. If enacted, it would do away with comity between the states, where each state recognizes the decisions made by other state's courts. It would do away with 'choice of law', a real biggy when it comes to having somebody like Volkswagen or Toyota build a plant in your state.

By picking on one religion, it clearly violates both the 1st and 14th Admendments.

OK law already protects its citizens from stoning, female circumcision, talaq divorce, and the other odious things one might find in Shariah law. It's called 'public policy'.

The amendment is a joke and another attempt at feel-good law making. If it's not 'for the children' or 'for the women', then it's 'against the Muzzies'.

The only real legal question is whether the ratification of the amendment can be enjoined or whether it first needs to be ratified in order to be struck down by every federal court it reaches.

It might be useful to examine the actual amendment to the State Constitution, State Question 755:https://www.sos.ok.gov/gov/proposed_questions.aspx#sq755

and the full chain of legislative amendments here:https://www.sos.ok.gov/documents/questions/755.pdf(by the way, I love that I can view all this online. Open government is great)

To a non-lawyer this appears to stave off a problem that really hasn't appeared at the state level yet, namely courts using non-US legal frameworks as basis for decisions. To a non-lawyer it also appears that this is a much more serious problem at the Federal and SCOTUS level.

The objections appear to be two-fold. The first, the one being pursued, is that by naming "Sharia" specifically the state of Oklahoma is discriminating against a single religious group. I'm interested in how it plays out. I'm very interested in who is funding this lawsuit, but I'll concede that the objection stands on its own.

The second objection, the one raised by most of the professional legal community in Oklahoma, is that forcing the courts to ignore international laws inhibits contractual rights. Say a German company wish to buy an Oklahoma asset and include German law in the contract. The international portion of the contract, say the critics, will be invalidated and that chills business opportunities.

Again, as a non-lawyer, I see this as a feature rather than a bug. Limiting the body of law that can apply to a contract would seem to simplify and clarify contracts. There would seem to be less room for the complicated shenanigans that, quite frankly, lawyers get paid to do.

I lived in a Muslim country for a long time, so I can tell you what it is like to be a dhimmi (or, in less polite company - a khufar) So wonderful to be in a place where several million expat workers would be arrested if any even tried to hold a church service. So nice to have it explained how "superior" their religion was (all public show - no personal go). And not a peep from any human rights groups when maids and workers were routinely raped since they were "servants" (based on what a certain religion tells you what you can do to your slaves).

Go Oklahoma! Freedom of religion - but Sharia is a POLITICAL code for running your life. If you accommodate that - you are certainly violating the intent of 1st amendment.

There was a case in NJ were a man who had repeatedly raped his wife was not issued a restraining order because that was within his expectations for a Muslim marriage. It was appealed and he lost. But still, what kind of judge says its okay to rape your wife because your religion says its ok?

"Ironclad said...I lived in a Muslim country for a long time, so I can tell you what it is like to be a dhimmi (or, in less polite company - a khufar) So wonderful to be in a place where several million expat workers would be arrested if any even tried to hold a church service. So nice to have it explained how "superior" their religion was (all public show - no personal go). And not a peep from any human rights groups when maids and workers were routinely raped since they were "servants" (based on what a certain religion tells you what you can do to your slaves)."

I would hope that the usual suspects who defend the religion of peace at the expense of our Western values would take a moment and understand what they are defending here.

Skyler -- I suppose I'd start with your own assertion in this very thread that you are no expert on arbitration and have only taken one class in the subject

Could a dog be the arbitrator? How about feats of strength? Because you are suggesting that the state does not have any laws about who can arbitrate and under what circumstances. This is foolish and absurd.

"Skyler said...I'm not sure how they can pre-empt Sharia law. The federal arbitration act requires compliance and states cannot opt out. If individuals agree to use sharia law to settle their disputes, no state law can stop it."

SevenMachos responded, and SevenMachos is right.To be an arbitrar in a state, you have to be sanctioned in that position.We simply didn't give "The Godfather" the power to sanction resolution of legitimate business disputes or settle tenent-landlord disputes....because the implication in Don Corleone's approach was that very unhealthy things awaited those you rejected his arbitration. "Senor Corleone...If I had only known your concern on this, of course with your wisdom I would have never questioned the old lady keeping the dog from the very start.Heh! No problem! In fact, I am cutting her rent by half. God day! Good day to you, sir!"

Now the problem with Sharia is you can easily imagine the modern day version of a landlord or daughter discovered to be friends with an infidel having a similar sort of conversation with 3 Sharia Muslims in a back room offering their "advice and arbitration".

What would happen if "arbitration" with a Corleone or a pack of Mullahs is rejected - is what makes Omerta or Sharia so wonderfully effective. And it isn't really "a matter for local cults, neighborhoods" to decide among themselves to "opt out" of regular law.Mormon breakaway sects have factually stated that everyone in a Polygamy Compound wishes honestly that US law does not apply, but that Book of Mormon, as interpreted by the Elders - can be used to arbitrate who gets what 14-year old girl, who dresses so, and what punishments await various offenses. The Mormon cults claim that right to insider arbitration - and America rejects that.

I note that passing of State Question 755 enacts HJR 1056. While not mentioned in HJR 1056, State Question 755 also forbids consideration of tribal law, which must be a big deal in the Sooner State.

HJR 1056 does affect interstate comity, because it rejects consideration of another state's law if that state's law uses part of Sharia law as a rule of decision. Again, Oklahoma states would have to hire mullahs, this time to pore over other states' laws to see if they can detect Sharia within the statute.

Anything that creates demand for lawyers must be seen as a boon. The wording will keep lawyers in work for years, as well as stimulating demand for Islamic experts.

I scoff at the claim that SQ 755 will have no significant fiscal impact. Just wait till foreign manufacturers start avoiding building plants in Oklahoma, or pulling out their existing plants. Or the lawsuits between the various resident Indian tribes and the state of OK.

Seven asked, "Could a dog be the arbitrator? How about feats of strength?"

Why, yes. Yes they can.

If you contract for disputes to be arbitrated by feats of strength, then yes. The courts have repeatedly ruled that you are free to contract for arbitration.

Arbitrators are not required to explain how they come to their decisions. If they use feats of strength or chicken entrails, they are not required to justify to you, to the parties, or to the government how they came to their decision -- unless the rules of arbitration as contracted require otherwise.

I don't know of any regulation of arbitrators. Arbitrators are chosen by the parties, not by the government. If you know of such regulations, please point to them.

The court in your area keeps a list of qualified arbitrators. Each arbitrator on the list is an attorney who must have been admitted to practice law for at least five years. The arbitrator must have been a member of the Bar of the State of North Carolina for at least the last two years of the five-year period. Each arbitrator on the list has also completed a training program and been approved to serve by the Chief District Court Judge in the county where the case is filed. Individuals who are not on the list and who have not completed the arbitrator training may also serve as arbitrators if all of the following conditions are met: (1) all the parties to the case agree to the selection; (2) the person is an attorney and has been licensed to practice law for five years, having been admitted in North Carolina for at least the last two years of the five year period; and (3) the selection is approved by the court.

A side comment on the common assertion by CAIR that since George Washington welcomed in a settlement of Jews and certain Christian sects then in disfavor in Europe were welcomed in - that the OBLIGATION and tradition of America and the Founders themselves..was that ALL religions are welcome.

Not so. The Founders vehemently rejected welcoming pagan human sacrifice cult religions recently discovered in the S Pacific into America.. They rejected the "Mohammedeans" as the eternal enemy of the West and reason. They "discriminated" against other "false beliefs of the savages" - native Americans, African devil worshippers, what the Brits were doing to root out Hindu Suttee and the Thuggee sect - favoring civilizing the savages (with a good helping of CHristianity thrown in).

It is profoundly American to seek to keep out religions inamicable with our values and civilization.

MultiKulti is a passing phase that the Euros are already ruing the period they embraced it.

Perhaps there are requirements for becoming an arbitrator in some jurisdictions but that does not change the fact that how an arbitrator decides a case cannot be reviewed by a court unless the rules of the arbitration allow it.

It doesn't change the fact that the FAA allows for arbitration in certain categories and state law cannot change that.

It's not a lather. I am educating you because you are completely wrong and have no idea what you are talking about.

Further, you have utterly missed the point that parties must agree to the arbitration. Still further, you don't understand what arbitration is. If I am killed o a ski slope, it's not going to arbitration.

I hate to admit it, but Cedarford has it dead on as regards the Founder's attitudes towards religions. The whole reason we created a standing Navy and Marine Corps was to do battle with Muslims. The Founders understood that Islam was inimical to liberty, and was a threat to everything western civilization held dear.

As regards Islam and women: Muslim women do not get to choose whether or not to submit. They simply must submit.

I live in an area with lots of Mennonites. The women all wear traditional clothes and headpieces. So, some ask, whats the difference between that and women in Islam. Answer is very simple. A Mennonite woman can choose her path, just as a Quaker does. A muslim woman? Not a chance. In Islam, woman are chattel slaves.

The way I look at it, if you defend Islam and Sharia, you're defending chattel slavery.

You know that the usual suspects like hdhouse and AlphaLiberal will be all for using federal tax dollars to build Obama' and Bloombergs Ground Zero Mosque. They will go to any lengths to curry favor with the muderous barbarians who are behind this spit in the eye to the families of people who died on 911. Cedarford will be for it too I am sure.

Just like the person who wrote the article, it is most important to them to curry favor and kiss the ass of the adherents of the "religion of peace."

They would never support one dime going to a Catholic, Protestant, Jewish (Cedarford), Mormon (downtownlad) or even the freaking Scientologists cultural center. Only the muslim are entitled to taxpayer money to build their end zone dance mosque on the rubble of ground zero.

Are you that dumb of a cocknocker that you can't see that CAIR fighting this legislation says that they have a vested interest in seeing Sharia begin to permeate the judiciary? Once Sharia law is taken into consideration from the state to the federal level, then will you say the same stupid thing? Fucking idiot, I'd knock your stupid teeth into next week if you were right here in front of me for trying to be so transparent in your passive acceptance of this.

I'm always amazed at those who argue that this country wasn't founded on Christian-Judeo principles. One "minor" example: The first OFFICIAL ACT/VOTE at the Constitutional Convention was to call for a prayer for guidance to be read--and it was a Jewish prayer to boot..